The IUCN Academy of Environmental Law series
Chapter 6: No private property rights in the atmosphere
The New Zealand Emissions Trading Scheme (‘NZ ETS’) does not create private property rights in either the atmosphere or greenhouse gases. Neither does it confer a private property right to emit greenhouse gases. Rather, it employs a very restricted private property right that can only be used for an extremely limited range of purposes. In particular, the primary purpose of the private property right at the heart of the regime is simply to enable its holder to discharge a liability that arises as a consequence of undertaking activities that result in greenhouse gas emissions. This observation is important because it addresses the criticism that environmental management regimes which employ private property to solve the tragedy of the commons actually create ‘rights to pollute’. The structure of the NZ ETS neatly avoids creating such a right and this suggests that the risks associated with using private property as a tool of environmental management can be ameliorated. More generally, the way the NZ ETS utilises private property indicates that private property itself may be far more flexible than is often acknowledged. This may provide a further source of support for a number of modern property law theories that stress private property’s essentially social function.
You are not authenticated to view the full text of this chapter or article.
Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.
Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.
Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.